Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2011

Hazardous Waste Fee Health and Safety Code

CHAPTER 6.5 HAZARDOUS WASTE CONTROL

Article 4. Listings

Section 25143

Amended text of section operative July 1, 1998

25143. Variance from requirements of chapter or regulations.(a) The department may grant a variance from one or more of the requirements of this chapter, or the regulations adopted pursuant to this chapter, for the management of a hazardous waste if all of the following conditions apply:

(1) One of the following conditions applies:

(A) The hazardous waste is solely a non-RCRA hazardous waste or the hazardous waste or its management is exempt from, or is not otherwise regulated pursuant to, the federal act.

(B) The requirement from which a variance is being granted is not a requirement of the federal act, or the regulations adopted to implement the federal act.

(C) The department has issued, or is simultaneously issuing, a variance from the federal act for the hazardous waste management pursuant to subdivision (c).

(2) The department makes one of the following findings:

(A) The hazardous waste, the amount of the hazardous waste, or the hazardous waste management activity or management unit is insignificant or unimportant as a potential hazard to human health and safety or to the environment, when managed in accordance with the conditions, limitations, and other requirements specified in the variance.

(B) The requirements, from which a variance is being granted, are insignificant or unimportant in preventing or minimizing a potential hazard to human health and safety or the environment.

(C) The handling, processing, or disposal of the hazardous waste, or the hazardous waste management activity, is regulated by another governmental agency in a manner that ensures it will not pose a substantial present or potential hazard to human health and safety, and the environment.

(D) A requirement imposed by another public agency provides protection of human health and safety or the environment equivalent to the protection provided by the requirement from which the variance is being granted.

(3) The variance is granted in accordance with this section.

(b) (1) The department may grant a variance upon receipt of a variance application for a site or sites owned or operated by an individual or business concern. The individual or business concern submitting the application for a variance shall submit to the department sufficient information to enable the department to determine if all of the conditions required by subdivision (a) are satisfied for all situations within the scope of the requested variance.

(2) The department may also grant a variance, on its own initiative, to one or more individuals or business concerns. If the variance is granted to more than one individual or business concern, the department, in granting the variance pursuant to this paragraph, shall comply with all of the following requirements:

(A) The department shall make all of the following findings, in addition to the findings required pursuant to paragraph (2) of subdivision (a):

(i) That the variance is necessary to address a temporary situation, or that the variance is needed to address an ongoing situation pending the adoption of regulations by the department.

(ii) That the variance will not create a substantive competitive disadvantage for a member or members of a specific class of facilities. This finding shall be based upon information available to the department at the time that the variance is granted.

(iii) That there are no reasonably foreseeable site-specific physical or operating conditions that could potentially impact the finding made by the department pursuant to paragraph (2) of subdivision (a). This finding shall be supported by substantial evidence in the record as a whole, and shall be based upon both of the following:

(I) The types of hazardous waste streams, the estimated amounts of hazardous waste, and the locations that are affected by the variance. The estimate of the amounts of hazardous waste that are affected by the variance shall be based upon information reasonably available to the department.

(II) Due inquiry, with respect to the hazardous waste streams and management activities affected by the variance, regarding the potential for mismanagement, enforcement and site remediation experience, and proximity to sensitive receptors.

(B) The variance shall not be granted for a period of more than one year. A variance granted pursuant to this paragraph may be renewed for one additional one-year period, if the department makes a finding that the variance has not resulted in harm to human health or safety or to the environment and that there has been substantial compliance with the conditions contained in the variance.

(C) The department shall issue a public notice at least 30 days prior to granting the variance to allow an opportunity for public comment. The public notice shall be issued in the California Regulatory Register, to the department's regulatory mailing list, and to all potentially affected hazardous waste facilities and generators known to the department. The department shall, upon request, hold a public meeting prior to granting the variance. In granting the variance and in making the findings required by paragraph (2) of subdivision (a) and subparagraph (A), the department shall consider all public comments received.

(D) The department shall not grant a variance pursuant to this paragraph from the definition of, or classification as, a hazardous waste, or from requirements pertaining to the investigation or remediation of releases of hazardous waste or constituents.

(E) The authority of the department to grant or renew variances pursuant to this paragraph shall remain in effect only until January 1, 2002, unless a later enacted statute, which is enacted before January 1, 2002, deletes or extends that date. This subparagraph shall not be construed to invalidate any variance granted pursuant to this paragraph prior to the expiration of the department's authority.

(c) (1) In addition to the variances authorized pursuant to subdivisions (a) and (b), the department, after making one of the findings specified in paragraph (2) of subdivision (a), may also grant a variance from the requirements of the federal act in accordance with the provisions of Sections 260.30, 260.31, 260.32, and 260.33 of Title 40 of the Code of Federal Regulations, or any successor federal regulations, regarding the issuance of variances from classification of a material as a solid waste or variances classifying enclosed devices using controlled flame combustion as boilers.

(2) This subdivision shall take effect on the date that the department obtains authorization from the Environmental Protection Agency to implement those provisions of the federal act that are identified in paragraph (1).

(d) Each variance issued pursuant to this section shall be issued on a form prescribed by the department and shall, as applicable, include, but not be limited to, all of the following:

(1) Information identifying the individuals or business concerns to which the variance applies. This identification shall be by name, location of the site or sites, type of hazardous waste generated or managed, or type of hazardous waste management activity, as applicable.

(2) As applicable, a description of the physical characteristics and chemical composition of the hazardous waste or the specifications of the hazardous waste management activity or unit to which the variance applies.

(3) The time period during which the variance is effective.

(4) A specification of the requirements of this chapter or the regulations adopted pursuant to this chapter from which the variance is granted.

(5) A specification of the conditions, limitations, or other requirements to which the variance is subject.

(e) (1) Variances issued pursuant to this section are subject to review at the discretion of the department and may be revoked or modified at any time.

(2) The department shall revoke or modify a variance if the department finds any of the following:

(A) The conditions required by this section are no longer satisfied.

(B) The holder of the variance is in violation of one or more of the conditions, limitations, or other requirements of the variance, and, as a result of the violation, the conditions required by this section are no longer satisfied.

(C) If the variance was granted because of the finding specified in subparagraph (C) or (D) of paragraph (2) of subdivision (a), the holder of the variance is in violation of one or more of the regulatory requirements of another governmental agency to which the holder is subject and the violation invalidates that finding.

(f) Within 30 days from the date of granting a variance, the department shall issue a public notice on the California Regulatory Register.